In March 2017, the Colorado State Judicial Branch issued amendments to 13 of its JDF forms. The amended forms include trust and estate forms such as JDF 999, “Collection of Personal Property by Affidavit,” and writ of garnishment forms such as C.R.C.P. Form 26, “Writ of Continuing Garnishment.”

The 13 forms amended in March available below in PDF format. Some of these forms are also available in Word format on State Judicial’s forms page. Additionally, one form was amended in February and seven were amended in January. These forms are also available below in PDF format.

Fritzler and his wife executed numerous wills during the last 10 years of their lives. The last will was drafted just a few years before they each passed away. In all of the wills, the Fritzlers sought to distribute their farm in a generally equitable manner among their five children, but the last will increased son Glen’s portion over son Steven’s portion. Steven contested the will, contending that Glen unduly influenced Fritzler. After a lengthy trial, a jury concluded that the will was valid. Following the verdict, the estate and the personal representative (PR) sought attorney fees and costs. The court denied the award of fees, finding that the case was “close” and Steven did not lack substantial justification. The court partially denied costs, concluding that it lacked equitable authority to grant fees without concurrent statutory authority.

On appeal, Steven contended that the trial court abused its discretion by excluding Fritzler’s hospital medical records because they were admissible under the business records exception. Although the exclusion was an abuse of discretion, any error was harmless because the records were cumulative of other admitted evidence.

Steven also contended that the trial court erred by refusing to instruct the jury on the presumption of undue influence. However, the PR offered sufficient evidence to rebut this presumption. Thus it would have been improper for the court to instruct the jury thereon.

The PR contended that the trial court erred by denying her request for attorney fees under C.R.S. § 13-17-102 and by denying her certain costs as the prevailing party under C.R.C.P. 54(d). The trial court noted that this was a close case and found that even though Steven did not prevail, his claims were not groundless, frivolous, or vexatious. Therefore, the court did not err by denying the request for fees. As to the costs, the trial court awarded most of the requested costs to the PR after a hearing, denying only some that it found to be unreasonable. Therefore, the court did not err in its award of costs.

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

The Top Ten Programs and Homestudies for Trust and Estate practitioners are featured today on Legal Connection. There are many, many other great Trust and Estate programs, and CBA-CLE also offers a wide array of great books for Trust and Estate practitioners. Visit cle.cobar.org/Practice-Area/Trust-and-Estate to peruse our selection of books and programs. And now, without further ado, here are the Top Ten Programs and Homestudies for Trust and Estate Lawyers.

10. Advanced Estate Administration: Complexities ExplainedWhen are third party payors liable for distributions made to fiduciaries? How do you file a portability tax return? Will your malpractice insurance cover you if there is a tort claim for breach of fiduciary duty? Get answers to these complex questions and more from this Advanced Estate Administration homestudy! Also get tips on locating and collecting digital assets in our digital world. Also included: uncertainty regarding the legal test for capacity in Colorado, and ethics on conflicts of interest issues that arise in estate administration. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

9. Decanting, Digital Assets Act, and the Determination of Heirship Act — Trust & Estate Fall Update 2016The name of the game for the program is NEW, NEW NEW! Attend to find out everything you need to know about the new decanting rules, the new determination of heirship statute, Colorado’s new Fiduciary Access to Digital Assets Act, and IRS Form 8971 and the new basis consistency rules. There will also be a discussion about the recent ATF regulation changes in the transference of firearms. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits.

8. Counseling Trustees on their DutiesThis program defines “fiduciary,” including trustees, personal representatives, agents under powers of attorney, and others; explains the basic statutes, principles, and requirements of fiduciary administration; explains who can and cannot serve as a fiduciary; and provides an in-depth discussion of a trustee’s duties. Order the Video OnDemand here and the MP3 here. Available for 4 general credits.

7. Understanding Benefits — Trust & Estate Fall Update 2015The Trust and Estate Fall Update is your guide for understanding benefits in its many forms for the estate planning practitioner. Get the latest information on the available resources for long term placement in nursing homes, as well as the ethics of privity in estate planning. Whether it’s Medicaid, Medicare, Social Security or the Veteran’s Administration, this CLE has it all. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

6. 30 Cases Every Trust & Estate Lawyer Should KnowWhat are the cases you thought of when you read the title of this program? Spencer Crona dives into the cases that every trust and estate lawyer should know. He explains the holdings, and gives you analysis and key insights. Armed with this case list, you’ll never have to phone mother to say you won’t be a lawyer after all. Order the Video OnDemand here and the MP3 here. Available for 2 general credits.

5. Funding the Revocable Living TrustThe revocable living trust has been an important estate planning tool for those seeking to avoid probate and protect their privacy. The effectiveness of this strategy depends largely on proper funding of assets, without which the primary purpose of utilizing a revocable living trust rather than the traditional will, is defeated. Each type of asset owned by the client will have different challenges in preparing for transfer to the trust. Mr. Schmidt reviews the issues encountered for the most commonly encountered types of transfers. You’ll also receive a PDF copy of the CBA-CLE book, Funding the Revocable Living Trust, authored by L. William Schmidt, Jr. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

4. No Contest Clauses — Current Perspectives on Estate Planning and LitigationWith the rise in post-mortem estate planning and the increasing ability to modify estate planning documents after death, clients are becoming more and more unsure of the finality of their estate planning. As a result, practitioners are experiencing an increase in the use and enforcement of in terrorem or “no contest clauses.” Similar to most states, Colorado law has long provided for the enforceability of no contest clauses subject to a probable cause exception. Taking into account the public policy considerations, risk analyses, and increasingly litigious nature of estate and trust beneficiaries, estate planning attorneys and probate litigators alike can benefit from learning more about no contest clauses and how they play out under Colorado law. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

3. Understanding and Using Trusts — A Nine Program SeriesThis series consists of nine programs, each dedicated to a key area of trust law. The expert members of the faculty will explain the purposes, mechanisms and key clauses included in a wide variety of trusts typical for a Colorado trust and estate practice. They will explain the client needs that each trust addresses and how each type of trust meets those needs. The faculty will also point out common errors that practitioners sometimes make when working with these trusts. Other important issues that concern trusts, such as taxation, ethics, liability, and malpractice will also be covered. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Entire series available for 36 general credits.

2. Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary AdministrationThrough this course and his comprehensive treatise, Mr. Wade provides a thorough commentary on the law of wills, trusts, and fiduciary administration, focusing on leading Colorado cases, the probate code, and related fiduciary statutes. Each homestudy order receives a copy of the CBA-CLE book Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration,7th Edition, as part of the course materials for this program. Please note the book will be provided in PDF. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits, including 1 ethics credit.

1. 36th Annual Estate Planning RetreatThis annual three-day conference is a can’t-miss event for trust and estate practitioners. A wide range of topics are discussed each year. Last summer’s event covered such topics as “Advising Clients on the Mandatory Reporting of Abuse,” “Just Say No! Don’t Leave Your Client with Outdated Discretionary Distribution Language,” “Insurance Coverage Issues in Estate, Trust, and Fiduciary Litigation,” and much more. Although the event is live-only, planning is well underway for the 2017 program. Save the date! The 37th Annual Estate Planning Retreat will take place from June 8-10, 2017, at the Vail Marriott Resort & Spa. Look for registration information at EstatePlanningRetreat.org.

The Colorado Court of Appeals issued its opinion in Bruce v. Roberts on Thursday, December 15, 2016.

Trust—Frivolous Lawsuit—Attorney Fees—Foreign Court—Work Product.

James Roberts assisted his mother Della Roberts with forming the Della I. Roberts Trust in Colorado, where she lived. Upon Della’s death eight days later, James, the designated trustee, was supposed to divide the trust’s assets into two equal shares—one to benefit James and his wife, Mary Sue Roberts, and the second to benefit Della’s grandchildren, James and Mary Sue’s children. James did not properly administer the trust, but apparently, no one expressed concern about his administration until after he died.

After James’s death, Mary Sue assumed the role of trustee pursuant to the trust’s provisions. The grandchildren, who were ultimately appointed as trustees (trustees) objected and promptly removed Mary Sue as trustee. Although the Colorado court assumed jurisdiction, Mary Sue filed a separate case in West Virginia, where she lived, which was later dismissed for lack of jurisdiction. Bruce represented Mary Sue in both the Colorado and West Virginia matters. The district court in Colorado accepted a final accounting of the trust filed by trustees, ordered all assets remaining in the trust be distributed to the grandchildren in equal shares, and found that the trust could recover administrative costs and attorney fees incurred in litigating both the Colorado and West Virginia cases, pursuant to CRS § 13-17-102, from Bruce and Mary Sue. It also assessed $54,565 in fees against Bruce for the West Virginia action.

Bruce appealed the district court’s order only as it pertains to attorney fees awarded for the West Virginia action. He contended that CRS § 13-17-102 did not authorize the court to award attorney fees incurred solely in the West Virginia case. CRS §13-17-102 does not authorize a Colorado court to award attorney fees incurred in an action in a foreign court, unless work product created for use in the foreign court is also used in the Colorado court. Neither the district court’s order nor the record clarifies whether the trustees used work product created for the West Virginia action in the Colorado proceedings.

The portion of the order awarding $54,565 for attorney fees incurred in the West Virginia action was vacated, and the case was remanded for the district court to determine whether the trustees used work product created for the West Virginia action in the Colorado proceedings.

On February 18, 2016, Sens. Jack Tate & Michael Johnston and Reps. Dan Pabon & Yeulin Willett introduced SB 16-133 – Concerning the Transfer of Property Rights upon the Death of a Person, and, in Connection Therewith, Clarifying Determination-Of-Heirship Proceedings in Probate. The bill was introduced into the Senate Judiciary Committee, where it was amended. It passed through the Senate with amendments on Second Reading and passed through the House without further amendments. It is now awaiting the governor’s signature.

Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. First, this bill removes the requirement that the person who swears to and affirms the supplementary affidavit has no record interest in the real property, while requiring that the supplementary affidavit include a statement that the person referred to in the certificate is the same person who is named in a specific recorded deed or similar instrument creating the joint tenancy.

Amends the definition of “interested person” to mean an owner by descent or succession so that anyone affected by the ownership of property may commence a proceeding;

Requires the petition to contain additional information with respect to the property at issue, each decedent, any previous administration of the decedent’s property, and any unknown interested person;

Imposes additional requirements upon a petition if the decedent died testate, depending on whether the decedent’s will has or has not been previously admitted to probate, and if the will has not been probated, the petition must contain a statement that the original will is unavailable;

Requires a petitioner’s notice to identify the petition, and include the name of the each decedent, the name of each interested party, a legal description of any real property, the time and place of the hearing on the petition, and that any objection to the petition must be filed in writing with the court on or before the hearing date and served upon the petitioner; notice shall also be published once a week for three consecutive weeks in a newspaper of general circulation in the county in which the proceeding was filing, and in the county in which the real property at issue is located;

Requires upon the entry of a decree affecting title to real property, a certified copy of the decree must be recorded and indexed in the office of the county clerk and recorder of each county in which real property is located, as if it were a deed of conveyance from the decedent; and

Establishes that the admission of a previously unprobated will applies only to the decedent’s particular property interest described in the petition.

Third, this bill enacts portions of section 5 of the “Uniform Power of Appointment Act,” with amendments.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

In January 2016, the Colorado State Judicial Branch issued 13 new forms. Many of the forms are in the Probate category, specifically dealing with adult guardianships, and the rest of the forms include forms about name changes, request for payment of fees, and appointments of guardians ad litem. The forms are available here in PDF format and are available from the State Judicial forms page in Word or PDF.

The Colorado Department of Revenue released the 2015 indexed amounts with cost of living adjustments as required by C.R.S. § 15-10-112. The cost of living adjustments affect the amount of share of intestate estate for surviving spouses, supplemental elective share, exempt property allowance, lump sum family allowance, and small estate limit. These numbers should be used for the estates of decedents dying in 2015.

The bill repeals and reenacts, with amendments, certain provisions relating to the elective-share of a surviving spouse.

A specific devisee has a right to specifically devised property in a testator’s estate at death and, in the absence of other statutorily described property and moneys, a general pecuniary devise equal to the value, as of its date of disposition, of other specifically devised property disposed of during the testator’s lifetime, but only to the extent it is established that ademption would be inconsistent with the testator’s manifested plan of distribution or that the testator did not intend ademption of the devise.

To be effective to nominate a personal representative, a will must be declared valid by an order of informal probate by the registrar or by the court.

Under current law, a successor of a decedent may collect from another person any debts owed to the decedent and any personal property belonging to the decedent if the fair market value of the property owned by the decedent at the time of his or her death does not exceed $60,000. Under the bill, this amount may not exceed twice the value of property that the decedent’s surviving spouse is entitled to exempt from the estate, as adjusted for cost of living.

An instrument or other property that is payable or deliverable to a decedent or to the estate of a decedent is considered property of the decedent. A successor of the decedent or a person acting on behalf of a successor may endorse an instrument that is so payable and collect such amount.

The duties owed to a successor by a person acting on behalf of the successor in the making, presentation, or other use of an affidavit to collect personal property of a decedent are the same as the duties of an agent to the agent’s principal. The breach of this duty is subject to the same remedies as are available under the law with respect to an agent.

If a proof of right is established in a proceeding, any person to whom an affidavit was delivered and who refused, without reasonable cause, to pay, deliver, transfer, or issue any personal property or evidence thereof shall be liable for all costs, including reasonable attorneys’ fees and costs, incurred by or on behalf of the persons entitled thereto.

A provision in a trust specifying a method to revoke or amend the trust does not make the specified method exclusive unless the method is referred to as the “sole”, “exclusive”, or “only” method of revoking or amending the trust or the provision includes similar language manifesting the settlor’s intent that the trust may not be revoked or amended by any other method.

The bill sets forth certain duties and powers of trustees and trust advisors.

This bill is CBA sponsored and was developed by the Trusts and Estates Section of the Bar Association.

The bill passed out of the House on April 14. It is assigned to the Judiciary Committee; a committee hearing is scheduled for Wednesday, April 21 at 1:30 p.m.

Probate litigation depositions can be many things – tense, perhaps emotionally draining for the deponent and the parties. But as David R. Struthers of Godfrey | Johnson PC illustrates, learning about probate depositions can be entertaining as well.

His tongue-in-cheek materials discuss the prudence of determining in each case whether it is desirable to “open the door of discovery,” despite the endless enjoyment every lawyer derives from conducting depositions. Amidst the humor are practical tips, such as applying to the probate court to use the Colorado Rules of Civil Procedure in order to engage in discovery and requesting permission to videotape the deposition. Struthers is truly a splendid wordsmith who excels at cleverly crafting instructional materials disguised as humor. But his true talent is with the guitar.

In the video clip below, Struthers explains the difficulty in removing a troublesome client who returns to Spencer Crona’s door every single day.

The Colorado Department of Revenue has released the cost of living adjustment (COLA) figures for 2014 for probate matters. The cost of living adjustments are required by C.R.S. § 15-10-112. Trust and estate practitioners should be aware of the new figures, which affect decedents’ estates, elective shares, exempt property under C.R.S. § 15-11-403, lump sum distributions of family allowances, and collection of personal property by affidavit.

In January 2014, the Colorado State Judicial Branch issued several revised JDF forms in many categories. Click here for a list of previously issued forms. Most recently, JDF forms have been amended in the adoption, miscellaneous,probate, small claims, and seal my case categories.

This appeal involved the estate of Sheldon Beren, who died testate in 1996 and whose estate has been the subject of previous litigation (Beren I). This appeal involved defendant David Beren, who is one of decedent’s sons; Robert Goodyear, Jr., the estate’s personal representative in his capacity as liquidating trustee,; and the decedent’s surviving spouse, Miriam Beren (garnishor).

On September 2, 2010, the probate court approved Goodyear’s petition for final settlement and distribution (Final Distribution Plan), which called for the creation of liquidating trusts, including the Beren Estate Residuary Liquidating Trust Agreement (Liquidating Trust), because of Goodyear’s concern over a contingent income tax liability of the estate. Over defendant’s objections to the creation of the trusts, the probate court ordered Goodyear to distribute the estate assets as outlined in the Final Distribution Plan.

On appeal, defendant argued that garnishor could not garnish his interest in the Liquidating Trust to collect the contribution amounts that he owed her until she obtained a judgment establishing his liability in a separate contribution action. The Court of Appeals found that because the September 2 order fixed the contribution liability, garnishor was not required to obtain a separate judgment before she could garnish his account.

CRS § 15-11-205(4) provides for determination by the probate court of the elective-share and empowers it to “order its payment from the assets of the augmented estate or by contribution.” Under this authority, the probate court, in its September 2, 2010 order, had shown a 1997 distribution of $1 million to defendant subject to contribution of $459,546.51 for funding garnishor’s elective share. Defendant argued that this order was not an executable judgment and that under § 15-11-205(5), garnishor was required to bring a separate contribution action and obtain a judgment on which she could execute, before serving a writ of garnishment. The Court of Appeals found this section did not require a separate action but addressed only whether an order or judgment on contribution liability may be enforced in other Colorado state courts or other jurisdictions.

Alternatively, defendant argued that his bequest should not have been subject to contribution because the 1997 stipulation did not reserve to garnishor any right to seek contribution. This argument was foreclosed by Beren I. The division there declined to address this issue and he was precluded from raising it again.

Garnishor sought a portion of her appellate attorney fees under CRS § 13-17-102 because defendant’s assertion that the 1997 stipulation precluded contribution liability lacked substantial justification. The Court agreed and remanded the case for a determination of the amount.

Defendant argued that because the Liquidating Trust Agreement contained a spendthrift provision, the probate court erred by allowing his interest in the Liquidating Trust to be garnished before any distribution to him. The Court held that this provision did not protect funds that Goodyear was required to distribute under the Agreement, although the distribution had not yet occurred.

The Agreement provided that as soon as all applicable statutes of limitations on the contingent tax liabilities had expired, the Liquidating Trustee must distribute the remaining balance of each beneficiary’s separate share. The statute of limitations ran, and Goodyear told the beneficiaries he planned to make a distribution to each of them. Before he did so, garnishor served a writ of garnishment on Goodyear requiring him to pay her any personal property belonging to defendant up to the amount of his contribution liability from the September 2 order, plus interest. Defendant filed a claim of exemption relying on the spendthrift provision in the Agreement.

The probate court found that the spendthrift provision was invalid, or, even if the provision was valid, the trust funds could be garnished once Goodyear exercised his discretion to make a distribution. On appeal, the Court noted that funds under the discretionary control of a trustee subject to a spendthrift provision cannot be garnished. Once distributed, such funds are within the reach of creditors. The Court ruled that once the trust funds had become subject to mandatory distribution, they could be garnished. The order was affirmed and the case was remanded for further proceedings.

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Featured CLE Program: September 6, 2018

Featured Book: Foreclosure Law in Colorado

Foreclosure Law in Colorado, First Edition, explains the intricacies of Colorado’s foreclosure process in an easy-to-use format. In addition to explanations of the various types of foreclosures and considerations in effecting foreclosures, Foreclosure Law in Colorado contains many helpful forms, including a Notice of Intent to Cure, Notice of Intent to Redeem, Lis Pendens, Order Authorizing Sale, and more. The book is designed to assist practitioners through the foreclosure process, regardless of their experience level with foreclosures.

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